When it comes to employment, there are a bewildering array of laws that can come into play
By Stuart Rudner
Last week, my law partner Natalie MacDonald and I were co-directors of the HR Law for HR Professionals course, a certificate program put on by Osgoode Professional Development in Toronto that I started a few years ago.
One of the overriding themes each year has been that almost every HR legal issue must be assessed having regarding to a variety of laws and that few, if any, can be considered in a vacuum.
This theme is always confirmed throughout the course, when we attempt to discuss fact scenarios and end up considering several different laws. The best example is probably the discussion of terminations, which typically ends up including
•employment standards legislation
•common law principles
•human rights issues
•accommodation
•contract law
•privacy concerns
•occupational health and safety.
In the unionized context, the collective agreement will also be an important factor.
The fact situation we set out at the start of the course was something like this:
You are the director of HR, in your office on a Friday afternoon before a long weekend. You are packing up your stuff for the weekend, having already mentally and emotionally left for the cottage, when there is a timid knock on the door. A woman you know as Sara from customer service comes in and you invite her to have a seat. She has worked for the company for around a decade. A few years ago, you helped her out by hiring her husband into a warehouse position when he had been laid off. You have heard they recently split up, and it is not amicable.
Sara quietly tells you she is scared. Yesterday afternoon, she and her ex, Joe, had a heated discussion at work. When she entered the parking lot at the end of her shift, Joe was waiting for her. He grabbed her, took her behind a post and sexually assaulted her. She went home, distraught, and found he had posted a photo of himself on her Facebook page, flexing his muscles and sending a clear message.
You assured Sara the company will do what it can to help her, and ask if there is anything else you should be aware of. She reluctantly admits that during their exchange in the office, she made a derogatory comment about his disability, which really seemed to set him off. She also quietly adds that Joe doesn’t know it yet, but she is pregnant.
As readers will realize, this fact situation raises a number of diverse legal issues. There may be temptation to focus on one to the exclusion of others. After all, clearly the sexual assault is the most serious, isn’t it?
However, if Sara did make comments about Joe’s disability, then she should be investigated as well. There are also occupational health and safety concerns, particularly in Ontario in light of Bill 168, which requires that employers take action if there is concern that domestic violence may spill over into the workplace. Addressing that issue will raise privacy concerns, particularly in situations where you may have to warn other employees about a potential danger — how much can you reveal?
While not a separate “area” of law, investigations have taken on substantial importance in the employment law context, and a failure to investigate properly can expose an employer to substantial damages. In this case, there is apparently a need to investigate both Sara and Joe.
The employer will then have to assess the extent of discipline, if any, that is warranted for both of them. Sara’s harassment, on the basis of a ground protected human rights legislation, may be a mitigating factor when assessing how to address Joe’s conduct. However, given the seriousness of the allegations, it may not change the end result. At the same time, there is a need to keep Sara and all other staff safe.
The bottom line is that HR professionals, like lawyers, rarely encounter situations where a question is posed “in a vacuum.”
Even seemingly innocuous questions such as hours of work may not only relate to employment standards; contracts, collective agreements, and human rights may all come into play. Unfortunately, many organizations expose themselves to liability when they fail to consider all of the issues.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at [email protected]. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.
